Q. 11-A. Explain the Human Rights to Equalities as provided in the Constitution. Refer to the leading cases.–
Human Rights to Equalities- The Preamble of Universal Declaration of Human Rights (UDHR), inter alia, asserts recognition of inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of the freedom, justice and peace in the world and protection of human beings by the rule of law, It refers to the United Nations Charter which reaffirmed the faith of the people of United Nations in fundamental human rights, in the dignity and worth of the human persons and in the equal rights of men and women. Article 1 of the UDHR provides that all human being are born free and equal in dignity and rights. They are endowed with reason and conscience and should be act towards one another in a spirit of brotherhood. Article 2 gives entitlement to everyone to all the rights and freedoms set forth on the UDHR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status. No distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be an independent trust, non- self governing or under any other limitation to sovereignty Under Article 10 of the UDHR everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of the rights and obligations and any of criminal charge against him. UDHR enumerates two sets of rights (1) Civil and Political Rights; (2) Economic Social and Cultural Rights.
Right to equality in Civil and Political Rights.- (1) Equality before the law and equal protection of law against any discrimination in violation of UDHR (Article 7). (2) Right to marry and to found a family and equal rights as to marriage, during marriage and its dissolution (Article 16, para 1)
(2) Right to equality in Economic, Social and Cultural Rights.- (i) Right to equal pay for equal work (Article 23, para 2).
(ii) Right of all children to enjoy same protection (Article 25, para 2)
(iii) Right of all powers to be equal before the Courts and Tribunals. (Article 14, para 1)
(iv) Entitlement of everyone to a fair and public hearing by a competent, independent, impartial Tribunal in the determination of a criminal charge against him, or of his rights and obligations in a suit at law. (Article 14. para 1)
Right to equality in International Conventions.- (1) Undertaking and prohibition by State parties to eliminate racial discrimination all its forms and guarantee of the right of everyone without distinction as to race, colour, or national or ethnic origin, to equality before the law notably in the enjoyment of the right of F equal treatment before the Tribunals and all other organs administering justice (Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination)
(2) Equality of women with men before law. (Article 15 of the Convention on the Elimination of all Forms of Discrimination Against Women).
Right to Equality in the Constitution of India (Article 14).-
The Preamble declares the object of the Constitution is to secure to all its citizens equality of status and opportunity. Article 14 embodies general principles of equality as laid down in Dicean concept of Rule of Law the succeeding Articles 15, 16, 17 and 18 lay down the specific application of the general rule laid down in Article 14
Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 14 applies to citizens and non-citizens and natural as well as legal persons.
Article 14 incorporates two legal concepts, viz “equality before the law” and “equal protection on the law.
Equality before the law. Equality before the law connotes equal subjection of all classes to the ordinary law of the land. It implies that every official from higher rank to the lower rank is under the same responsibility for every act done without lawful justification as any other ordinary citizen.
Equality before the law is a negative concept. It declares that everyone is equal before law, that no one can claim special treatment and that all classes are equally subjected to the ordinary law of the land.
The Rule of Law or the equality principle too is not without exceptions. Absolute equality is unknown to all constitutional systems. Law should be equal among equals. In other words like should be treated alike. The State may make a classification on the basis of reasonable distinction relevant to the particular subject dealt with. There are certain exceptions to the general rule which Constitution itself provides in Article 361.
Equal protection of Laws. The second concept “equal protection of laws is more positive in content. This concept is borrowed from the 14th Amendment of the American Constitution It means subjection to equal law applying to all persons in the same circumstances. All persons similarly circumstanced shall be treated similarly both in privileges conferred and liabilities imposed. Equal laws should be applied to all in the same condition. This is the simple meaning of this doctrine.
Article 14 thus stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or their administration. [Maneka Gandhi v Union of India, AIR 1978 SC 597]
Article 14 permits classification. The equal protection of laws guaranteed by Article 14 does not mean that all laws must be general in character. It does not mean that the same laws should apply to all persons. The varying needs of different classes of persons often requires separate treatment. From the very nature of society there should be different laws in different places and the Legislature controls the policy and enacts laws in the best interest of the safety and security of the State. In fact, identical treatment in unequal circumstances would amount to inequality. So a reasonable classification is not only permitted but is necessary if society is to progress.
Article 14 does not permit class legislation which means undue discrimination by conferring some advantages or privileges upon an arbitrarily selected group of people though all of them are similarly circumstanced in relation to privilege conferred on the selected class. In other words, class legislation amounts to unequal treatment with equals and hence void under Article 14.
Basis of reasonable classification. It is now well- established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group. (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be nexus between the basis of classification and the objective of the Act.”
It has been held in Thimappa v. Central Boards of Directors, S.BI, AIR 2011 SC 467, that Article 14 does not forbid but permits reasonable classification, but to be reasonable it must pass the aforesaid two tests.
A classification in a law regulating labour in mines or factories may be based on age or sex but it may not be based on the colours of one’s skin, for such a classification being irrelevant (without nexus) to the working capacity, is arbitrary and offends against equality before the law.
There should be no discrimination amongst equals. No one has special privilege by reason of birth or the like. All persons are subject to the ordinary law of the land.
Equality before law does not mean for all the law shall be same. This maxim means among equals the law shall be equal and equally administered.
In Randhir Singh v. Union of India, AIR 1997 SC 3014, it has been held that although the principle of “equal pay for equal work is not expressly mentioned in the Constitution as a Fundamental Right but is certainly a goal under Article 14 and therefore, can be enforced in cases of unequal scales of pay based on irrational classification.
New test for equality protection against arbitrariness. In E.P Royappa v. State of Tamil Nadu. AIR 1974 SC 555, the Supreme Court has laid down new test for determining the reasonableness of a law. The Court has held that equality is antithesis of arbitrariness. The equality and arbitrariness are sworn enemies and therefore, where an act is arbitrary it is unequal both according to political logic and Constitutional law and is, therefore, violative of Article 14.
The Supreme Court has affirmed the new concept of equality in Maneka Gandhi v. Union of India, AIR 1978 SC 597, Bhagwati J., said “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment, the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence”.
In this case the petitioner’s passport was impounded without any reason. It was held that the Government was not justified in withholding the reasons for impounding the passport from the petitioner.
Equality is for equals that is to say, those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstances and conditions. [Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327]
Treating unequals as equals is violative of Article 14. In A.P.B.C. Singh v. Jharkhand State Vaishya Federation, AIR 2006 SC 2814, the Jharkhand State had amalgamated ‘Extremely Backward Class’ and ‘Backward Class’ into one group for the purpose of reservation in professional and educational institutions. The Apex Court has held that the decision of the Government, amalgamating the Extremely Backward Classes and Backward Classes is violative of Article 14 because two different classes have been treated similarly. Merely showing that the Council of Ministers had applied their minds in order to arrive at the decision is not tenable and such decision is arbitrary and unreasonable and is subject to judicial review.
In the case of Chiranjeet Lal v. Union of India, AIR 1951 SC 41, it was held that single individual may be considered a class in special circumstances. The Supreme Court ruled that a law may be constitutional even if it applies to a single individual on account of some special circumstances or reasons applicable to him, that individual may be treated as a class itself.
In R.K. Garg v. Union of India, AIR 1981 SC 2138, the Supreme Court observed that classification made by the Act between persons having black money and persons not having black money is based on intelligible differentia having rational relation with the object of the Act. In this case, Section 3 of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 grants certain immunities to person who has invested his unaccountable money in the Special Bearer Bonds. They are not required to disclose the nature and source of acquisition of the Special Bearer Bonds. The Court rejected the contention that the classification is arbitrary and held the Act valid.
Prohibition against discrimination on the grounds only of religion, race, caste, sex or place of birth or any of them (Article 15). Article 15 is a particular application of the equality principle laid down in Article 14. It provides:
“(1) the State shall not discriminate against any citizens on the grounds only of religion, caste, race, sex, place of birth or any of them.
(2) No citizen shall, on the grounds only of religion, race, caste, sex or place of birth or any of them, be subjected to any disability, liability restriction or condition with regard to-
(a) Access to shops, public restaurants, hotels and place of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of State fund or dedicated to the use of general public.
(3) Nothing in this Article shall prevent the State from making any special provisions for women and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
(5) Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission in educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.”
(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or, clause (2) of Article 29 shall prevent the State from making,-
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
Explanation. For the purposes of this article and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.
Difference between Article 15(1) and 15(2).-A discrimination based on one or more of these grounds as mentioned in Article 15(1) and also on other ground or grounds will not be affected by Article 15(1). [Dattatraya v. State of Bombay, AIR 1953 Bom 311]. This means that if one or more of the specified grounds is combined with a ground not mentioned in Article 15(1) the laws will be outside the prohibition contained in Article 15(1). Article 15(1) prohibits discrimination on the ground of birth and not that of residence. A State can, therefore, grant concession to its residents in matters of fees in an educational institution.
Article 15(2) applies to State as well as to private action while Article 15(1) refers to the obligation of the State only.
Difference between Articles 14 and 15 the guarantee of prohibition against discrimination is available to citizens only under Article 15 and to citizens and non-citizens under Article 14. Further the discrimination prohibited under Article 15 can be permitted under Article 14 by showing that the classification is reasonable. Further, the prohibition of discrimination under Article 15 is on the ground of place of birth but not on the ground of residence.
In A.P. Public Service Commission v. Balaji Badhavnath, (2009) 5 SCC 1, provisions contained in Articles 15 and 16 are merely enabling provisions. No citizen of India can claim reservation as a matter of right and accordingly no writ of mandamus can be issued.
In Air India Cabin Crew Association v. Yeshaswinee Merchant, AIR 2004 SC 187, the Supreme Court held-Articles 15(1) and 15(2) prevent the State from making any discriminatory law on the ground of gender alone. The Constitution is thus characterised by gender equality. The Constitution insists on equality of status and it negates gender bias. Nevertheless by virtue of Article 15(3), the State is permitted, despite Article 15(1) to make any special provision for women, thus, carving out a permissible departure from the rigours of Article 15(1). Articles 15 and 16 do not prohibit special treatment of women. The constitutional mandate is infringed only where the females would have received same treatment with males but for their sex.
Special provisions for women and children and for advancement of Backward Classes [Article 15(3) and 15(4)].- Clauses (3) and (4) of Article 15 embody exceptions to the general rule laid down in clauses (1) and (2). Clause (3) empowers the State to make special provisions for women and children. Clause (4) empowers the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Though there is nothing in Article 15(3) and (4) to qualify the special provisions which the State can make, yet and general prohibition made by Article 14 will apply to such cases and the special provision which the State makes should not be arbitrary or unreasonable. [N. Vasundara v. State of Mysore, AIR 1971 SC 1439].
In the Mandal Commission case, namely, Indra Sawhney v. Union of India, AIR 1993 SC 477, the Supreme Court has held that sub-classification of backward classes into more backward and backward classes for the purpose of Article 16(4) can be done provided as a result of the sub-classification the reservation cannot exceed more than 50 per cent. Thus, the Court has overruled Balaji case on this point.
In State of U.P. v. Pradip Tandon, AIR 1975 SC 563, the U.P. Government made reservation of seats for admission to Medical College in favour of candidates coming from rural areas, Hill and Uttarakhand areas. The Supreme Court has held that the reservation in favour of candidates coming from rural areas was unconstitutional; but that for the candidates coming from Hill and Uttarakhand areas was valid because the latter were economically and educationally backward.
In Dr. Priti Srivastava v. State of M.P., AIR 1999 SC 2894, the Supreme Court has held that merit alone can be the criterion for selecting students to the super speciality course like M.D. and M.S. and Engineering and there can be no reservation of seats in these courses.
Equality of opportunity in public employment (Article 16).- Article 16 is an extension of the equality principle of Article 14 in matters of appointment and employment of citizens to any post under the State.
Article 16 provides:
“(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, discriminated against in respect of any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government or of any local or other authority within the State or Union Territory, and requirement as to residence within that State or Union Territory prior prior to such employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provisions for the reservation of appointments of posts in favour of any backward class of citizens, which, in the opinion of the State is not adequately represented in the services under the State.
(4-A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority in any class or classes of posts in the services of the State in favour of the Scheduled Castes and the Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State.
(4-B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
(5) Nothing in this Article shall affect the operation of any law which provides that incumbent of an office in connection with the affairs of any religious or denominational institution or any member the governing body there thereof shall be a person professing a of the particular religion or belonging to a particular denomination.”
(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.
Clauses (3), (4) and (5) of Article 16 are not exceptions to the general rule of equality in respect of public appointments. Equality is guaranteed, not in public service but also in other employments such as Government contracts.
Only three kinds of departures are permissible:
(1) Residential preference, (2) Reservation of posts for certain communities of backward classes under certain circumstances, (3) offices connected with the managements of religious or denominational institutions being reserved only for members professing the faith connected with such institutions.
Article 14 and Article 16 forbids hostile discrimination. They do not forbid reasonable classification and equality of opportunity in matters of promotion means equality as between members of the same class of employees and not equality between the members of the separate and independent classes. [All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway, AIR 1960 SC 386]
In Air India v. Nargesh Meerza, AIR 1981 SC 1829, the air hostesses challenged the provisions which required them to retire at the age of 35 years or if they get married within four years of confirmation or on first pregnancy. It was held that these provisions were discriminatory and violative of Articles 14, 15 and 16 of the Constitution.
Reservation for backward classes. Article 16(4) is the second exception to the general rule embodied in Article 16(1) and (2). According to this provision, nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of “any backward class of citizens” which in the opinion of the State is not adequately represented in the services under the State.
In Indra Sawhney v. Union of India, AIR 1993 SC 477, the Supreme me Court by 6: 3 majority has held that the decision of the Union Government to reserve 27% government jobs for backward classes is constitutionally valid provided that socially advanced persons-creamy layer amongst them are excluded. But the Court has held that the reservation should not exceed more than 50 per cent and also that there cannot be reservation in promotions. The Court has held that the backwardness of a class can be identified on the basis of caste and not on economic basis.
Q. 12. Discuss the scope and ambit of the provisions of Article 21 of the Constitution as expanded by the Supreme Court of India from time to time in the light of the provisions of the International Covenant on Civil and Political Rights, 1966.
Ans. Right to life and personal liberty has been ensured to the citizens of all democratic countries of the world in their respective Constitutions. Under Article 21 of Indian Constitution, it has been provided “No person shall be deprived of his life and personal liberty except according to procedure established by law.” Similar provisions are also found under Article 6 of the International Covenant on Civil and Political Rights. This Article provides, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 9 of the Covenant again repeats the same in the sense. Article 9 (1) provides “Everyone has the right to liberty and security of person. Nobody shall be deprived of his liberty except on such ground and in accordance with such procedure as are established by law.”
In a famous clause of Magna Carta, it has been provided, ‘Nobody shall be deprived of his life and personal liberty except according to procedure established by law. In this way, we find resemblance in the provisions of the International Covenant.
In Maneka Gandhi v. Union of India, AIR 1978 SC 597, Justice Bhagwati remarked “the expression, ‘personal liberty’ in Article 21 is of the widest amplitude and covers variety of rights which constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and has given additional protection under Article 19 of the Constitution.”
In Kharak Singh v. State of U.P., AIR 1963 SC 1295, Ayyangar J., speaking for the majority held that an unauthorised entry into a person’s home and the disturbance caused to him thereby is the violation of common law right of a man and ultimate essential of ordered liberty. His Lordship further held that right to privacy is covered by Article 21 and domicilliary visits of police at night is plainly violative of Article 21 and U.P. Police Regulation is liable to be struck down as unconstitutional.
In State of Andhra Pradesh v. C. Ramakrishna Reddy, AIR 2000 SC 2083, the Supreme Court observed that right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and even the State has no authority to violate that right. A prisoner, be he a convict or undertrial or a detenue, does not cease to be a human being. Even when lodged in jail, he continues to enjoy all fundamental rights including the right to life guaranteed to him under the Constitution.
In State of Maharashtra v. Madhulkar Narayan Mardikars, AIR 1990 SC 207, the Supreme Court held that even a woman of easy virtue is also entitled to privacy and no one can invade her privacy as and when he likes. It is not open to anyone to violate her person as and when he wishes. She is also entitled to the protection of her person and if there is attempt to violate it against her wish, she is equally entitled to protection of law.
In R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, the Supreme Court held that a female who is the victim of a sexual assault, kidnapping, abduction or a like offence, should not be further subjected to the indignity of hér name and the incident being published in press/media. dia. Further, it may be noted that in case of public officials, right to privacy or for that matter, the remedy of action for damages is not available with respect to their acts and conduct relevant to the discharge of their official duties, yet, they may be prosecuted and punished under the provisions of Article 21 of the Constitution.
In Sher Singh v. State of Punjab, AIR 1983 SC 344, the Supreme Court observed that a prisoner who has experienced living death due to delay in the execution of his death sentence for years is entitled to invoke the jurisdiction of the Supreme Court for examining the question whether, he has been subjected to the agony and torment and it is just and in such circumstances whether it is fair to allow the sentence of death to be executed.
The Supreme Court of India has expanded the scope of Article 21 and has recognised following rights as fundamental rights of the citizens although they have not been specifically provided in the Constitutions:
(i) Right to travel;
(ii) Right to privacy;
(iii) Right against solitary confinement;
(iv) Right against bar fetters;
(v) Right to free legal aid in a criminal trial;
(vi) Right to speedy trial;
(vii) Right against hand-cuffing:
(viii) Right against delayed execution;
(ix) Right against custodial violence;
(x) Right against public hanging;
(xi) Right to health care or doctor’s assistance;
(xii) Right to shelter;
xiii) Right to pollution free environment; (
(xiv) Right to education of a child till he attains the age of 14 years;
(xv) Freedom of press;
(xvi) Right to know;
(xvii) Right to compensation;
(xviii) Right to be released and rehabilitation of bonded labour;
(xix) Right of inmates of protection homes, etc.
It may be noted that all these rights, including others, have been specifically mentioned in the International Covenant on Civil and Political Rights as well as Optional Protocol to the International Covenant on Civil and Political Rights. This is why in a large number of cases the Supreme Court has emphasised the importance of interpreting the Constitution in the light of provisions of these international instruments.
Q. 12-A. Write short notes on the following:
(1) Right to self-determination
(2) Slavery, slave trade and servitude
Ans. Right to self-determination-Article 1 (1) of International Covenant on Economic, Social and Cultural Rights provides:
“All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic social and cultural development.”
Article 1 (1) of Inter Covenant on Civil and Political Rights reiterates the aforesaid provisions. Vienna Declaration pursuant to the Second World Conference of Human Rights (1993) held in Vienna affirmed the rights of people to self determination recognizing the rights of people to take any legitimate action, in accordance with the charter to realize their inalienable rights of self-determinations. But the declaration provided that this would not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples.
According to Article 1 of the Universal Declaration of Human Rights all human beings are born free and they are equal in dignity and rights.
(2) Slavery, Slave Trade and Servitude. Article 4 of Universal Declaration of Human Rights provides: No one shall be held in slavery or servitude and slave trade shall be prohibited in all their forms. Traffic in persons and exploitation is clearly incompatible with Article I of Declaration on 25th September, 1926 the slavery Convention signed at Geneva designed to abolish slavery and slave trade. Article 1 of this convention defined slavery as “the status or conditional of a person over whom any or all the powers attaching to the right of ownership are exercised.” Under Article 2, the State parties undertook in respect of the territories placed under the sovereignty, jurisdiction, protection, suzerainty or tutelago, so far as they have not already taken necessary steps (a) to prevent and suppress the slave Trade, and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. In 1930, Convention on Forced Labour was adopted for the abolition of slavery. In 1956, supplementary Convention on the Abolition of slavery, the slave Trade and Institutions and Practice similar to slavery was adopted which provided the operative convention of 1926, to be augmented by the conclusion of a supplementary convention designed to intensify national as well as international efforts towards the abolition of slavery. The slave trade and institutions and practices similar to slavery. In 1956, the supplementary convention on the abolition of slavery, the slave trade and the Institutions and Practices similar to slavery was signed by the State parties. Each of the State parties to this convention have to take all practicable and necessary legislature and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the existing institutions and practices whether or not they are covered by the definition of slavery defined in Article 1 of the Slavery Convention of 1926. It is be noted the convention of 1926 broadly defined “slavery”. On June 25, 1957 the General Conference of International Labour Organization adopted the International Convention concerning the Abolition of Forced Labour.
India. Article 23 of the Constitution, which is a Fundamental Right, prohibits traffic in human being and forced labour. It provides:
Prohibition of traffic in human beings and forced labour.- (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such services, the State shall not make any discrimination on grounds only of religion race, caste or class or any of them.
Though slavery is not expressly mentioned in Article 23, it is included in the expression “traffic in human beings” (Dubba Goala v. Union of India, AIR 1932 Cal 496).
Article 35 empowers the Parliament to make laws for prescribing punishment for those acts which are declared to be offences under Part III which provides fundamental rights.
The Government of India ratified in 1950, the Convention for Suppression of Immoral Traffic in Persons and Exploitation of the Prostitution. Thereafter the Parliament passed Suppression of Immoral Traffic in Women and Girls Act, 1956. The name of the Act was amended in 1986 and its nomenclature was changed as Immoral Traffic Prevention Act. A person who provides labour or service to another for remuneration less than minimum wage amount to forced labour and is violative of Article 23 of the Constitution. [Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1943; Sanjit Roy v. State of Rajasthan, AIR 1983 SC 1155, Bonded Labour is a forced labour. [Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802].
A custom requiring each house holder of the village labour to provide one days free labour to the Headman of the village was held to be violative of Article 23 (1) of the Constitution.
Q. 12-B. Public Interest Litigation has expanded the ambit and scope of Human Rights in India?
Ans. Public Interest Litigation (PIL) or social Action Litigation (SAL) and scope of Human Rights in India. The Public Interest Litigation also called as social interest litigation, has its genesis in actio popularis in Roman Law for protecting public property or a religious charitable property in which action is maintainable by any person in a Court against a public delict for restitution or injunction. Public Interest Litigation makes basic human rights meaningful.
In Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344, Justice Krishna lyer held-In a competition between Courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law Court and wean him from the lawless street. The maintainability of a writ petition which is co- related to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water tight compartments. The question whether a person has the locus to file a proceeding depends on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or Article 32 of the Constitution (Para 3).
Justice P.N. Bhagwati in Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 held-Public Interest Litigation is brought before the Court not for purpose of enforcing the right of one individual against another. The Rule of Law does not mean that protection of law must be available only to a fortunate few. The poor too have civil and political rights and the rule of law is meant for them also, today it exists only on paper and not in reality.
In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, Justice Bhagwati held-Public Interest Litigation is not in the nature of an adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice.
Some of the cases where Public Interest Litigation have been held to be maintainable are as follows:
Redressal of common grievance A.B.K.K. (Rly.) v. Union of India, AIR 1981 SC 298, any member of public having sufficient interest can approach the Court for the enforcement of constitutional and legal rights of other persons [S.P. Gupta v. President of India, AIR 1982 SC 149]; for enforcement of various labour laws [Peoples Union for Democratic Rights v. Union of India, AIR 1983 SC 339]; for award of compensation to the victims of oleum gas leakage [M.C. Mehta v. Union of India, AIR 1987 SC 1086]; for the protection of ecology and environment [Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431; M.C. Mehta v. Union of India, AIR 2005 SC 3116]; for the closure of tanneries polluting the river Ganga [M.C. Mehta v. Union of India, (1987) 4 SCC 463]; for preventing conversion of green belt into residential areas [Lal Bahadur v. State of U.P., AIR 2018 SC 220]; for banning smoking in public places [Murli S. Deora v. Union of India, AIR 1980 SC 802], for the release and rehabilitation of bonded labourers [Neerja Chaudhari v. State of M.P., AIR 1980 SC 470]; for the welfare of inmates of Care Home Patna [Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782]; for improvement of working condition of hospital [S.R. Kapoor v. Union of India, AIR 1990 SC 752]; for installing pollution control device by industries so as not to pollute underground water [Vellore Citizen’s Welfare Forum v. Union of India, (1996) 3 SCC 212] etc.
In Guruvayur Devaswom Managing Committee v. C.K. Rajan, 2003 (7) SCC 546, the Apex Court summarised the principles evolved by it in regard to Public Interest Litigation thus-
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus not in a position to knock the doors of the Court. The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises.
(ii) Issues of public importance, enforcement of fundamental rights of large number of public vis-a-vis constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a Public Interest Litigation upon relaxing procedural laws as also the law relating to pleadings.
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International. Conventions on Human Rights provide for reasonable and fair trial.
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, deprived, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right.
(v) When the Court is prima facie satisfied about violation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.
(vi) Although procedural laws apply on PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case.
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a Public Interest Litigation.
(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
(ix) The Court in special situations may appoint Commission or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by, such Committee. The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated.
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(xi) Ordinarily the High Court should not entertain a writ petition by way of Public Interest Litigation questioning constitutionality or validity of a statute or a Statutory Rule.
No abuse of Public Interest Litigation. In Ashok Kumar Pandey v. State of W.B., 2003 AIR SCW 6105, the Apex Court observed that Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to see that a body of persons or member of public, who approach the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court has to be satisfied about (a) the credentials of the applicant, (b) the prima facie correctness or nature of information given to him, (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The Court further opined that the Court has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court also laid down that Public Interest Litigation which has now come to occupy an important field in the Administration of law should not be ‘Publicity Interest Litigation’ or ‘Private Interest Litigation’ or ‘Politics Interest Litigation’ or the ‘Paise Interest Litigation’.
In D.N. Thaware v. State of Maharashtra, (2005) 1 SCC 590, the Apex Court observed that the Court must be ruthless while dealing with imposters and busy bodies or meddlesome interloper’s impersonating as public spirited holy men who masquerade as crusaders of justice and pro bono publico. The Court said that in situations where serious questions of law are involved, like the one in service matters, Public Interest Litigation should not be allowed.
The Court should strike a balance between two conflicting interests:
(i) nobody should be allowed to misuse the judicial process by making wild and reckless allegation besmiraching the character of others;
(ii) avoidance of public mischief to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions.
Q. 13. Examine the provisions of International Instruments relating to prevention of cruel and inhuman punishment and compare them with those of Indian Constitution.
Ans. Article 5 of the Universal Declaration of Human Rights, 1948 provides “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Similar provision is available in Article 3 of the European Con Convention on Protection of Human Rights and Fundamental Freedoms, 1950. It provides, “No one shall be subjected to torture, or to inhuman or degrading treatment or punishment.”
Convention Against Torture, and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984, is the most important, International instrument in respect of protection of victims of torture or punishment. According to Article 1 of this convention “toture” means any act which serves pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected, of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiscence of a public official or other person acting in an official capacity. But it does not include pain or suffering arising only from inherent in or incidental to lawful sanctions.
The convention came into force on its notification by 20 States on 26th June, 1987. Till September 2013, 154 countries had ratified this convention. Under the convention, each State party is required to ensure that all acts of torture, an attempt to commit torture and an act by accomplice are offences under its criminal law. Each State party shall make such offences punishable by appropriate penalties taking into account their grave nature.
As torture, cruelty, inhuman treatment or punishment constitute grave crime, they are liable to be prosecuted and punished according to the law of the State.
Obligation of State parties. Each State party shall determine its jurisdiction for prosecution of such crimes of the offenders. The State party shall prosecute and punish the offender in following cases, (i) when the offence has been committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State, (ii) when the alleged offender is a national of that State; (iii) when the victim is a national of that State if that State considers it appropriate to prosecute.
All State parties have undertaken to prevent the commission of such crimes within their jurisdiction.
Any State party in whose territory the alleged offender is present, upon being satisfied, after an examination of information available to it, that the circumstances so warrant, shall take him into custody or other legal measures to ensure his presence. Such custody or other legal measures may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. Such State party shall immediately make a preliminary inquiry into the facts.
The offences shall be extraditable offences existing between State parties who undertake to include such offences in every extradition treaty to be concluded between them.
Each State party shall ensure that its competent authorities proceed to a prompt and impartial investigation, where there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Each State party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for full rehabilitation as possible. The victim shall not be extradited where the State party has reasonable ground to believe that he will be put in danger or be tortured by that State.
Implementation of the convention. This convention provides for a Committee Against Torture to be established for imple- mentation of the convention. This Committee Against Torture is established as a machinery for the enforcement of the provisions of the convention. The Committee comprises of ten experts of high moral standing and recognised competence in the field of human rights. The members of the Committee shall be experts in law and perform their duties in their personal capacity.
The Committee implements the provisions of the convention, similar to the Human Rights Committee established under the International Covenant on Civil and Political Rights through following procedure: (i) Reporting procedure, (ii) Inter-State Communication system, (iii) Individual communication system, and (iv) other functions.
These procedures have been discussed in detail in earlier answers.
Although under Article 7 of International Convention on Civil and Political Rights, 1966, provision against torture or inhuman treatment or punishment has been made but there is no specific mention of such provision in our Constitution. But, however, in a number of cases, our Supreme Court has recognised following rights, among others against torture of detenue, accused person or persons under custody of police or any other forums:
(1) Right against solitary confinement,
(2) Right against handcuffing,
(3) Right against custodial violence,
(4) Right against public hanging.
(5) Right to health care or doctor’s assistance,
(6) Right to shelter,
(7) Right against delayed hanging,
(8) Right against cruel and inhuman punishment,
(9) Right to release and rehabilitation of bonded labour, etc.
In this way, it is crystal clear that provisions of Indian Constitution are far more extensive for prevention of torture and cruel treatment and punishment than those provided under International Instruments like Covenant on Civil and Political Rights, 1966 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, 1984, etc.
Q. 14. Discuss the legal protection available to an offender against arbitrary arrest and detention.
Ans. Under Article 9 of the Universal Declaration of Human Rights, 1948, it has been provided that “No one shall be subjected to arbitrary arrest, detention or exile.” Similarly under Article 9 of the Civil and Political Rights, 1966, it as been provided that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law…..”.
Under Article 22 of Indian Constitution also legal safeguards have been provided against arrest and detention to the detenues which are as follows:
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by a legal practitioner of his choice.
(2) Every person who is arrested or detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clause (1) and (2) shall apply-
(a) to any person who, for the time being, is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
In this way, any person who has been detained or arrested and has been prevented from his personal liberty, shall have a right to move a court against his detention. A court of law may decide against his arrest or detention and permit that he be set free provided his arrest or detention is found illegal.
In D. K. Basu v. State of West Bengal, AIR 1997 SC 610, the Supreme Court laid down certain guidelines for the police officers to observe during investigation, interrogation or otherwise. The police officers must bear accurate, visible and clear identification and name tags with their identification. The Court made it clear that failure to comply with the guidelines would render him liable to contempt of court and proceedings for the same may be filed in the concerned High Court, for failure to comply with Articles 21 and 22 of the Constitution.
Providing compensation for unlawful arrest or detention.- Under Article 9 (5) of the International Covenant on Civil and Political Rights, 1966, it has been provided that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
Although there is no specific provision in our Constitution that wrongfully detained persons may be compensated for their unlawful detention, yet our Supreme Court has provided compensation to such detenues whose detention proved to be unlawful. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the Supreme Court held that the court had the power to award monetary compensation in appropriate cases where there has been violation of constitutional rights of the concerned citizen. In the present case, the Supreme Court directed Bihar Government to pay Rs. 30,000 as compensation to Rudul Sah who had to remain in jail for 14 years because of the irresponsible behaviour of the State Government officers even after his acquittal by the court.
Similarly in Bhim Singh v. State of J. & K., (1985) 4 SCC 677, the Court awarded a sum of Rs. 50,000/- to the petitioner as compensation for the violation of his constitutional right of personal liberty under Article 21 of the Constitution. The petitioner, an M.L.A., was arrested and detained in police custody and deliberately prevented from attending session of the Legislative Assembly. The police officers acted deliberately and mala fidely and the Magistrate and the sub-judge also aided them either by colluding with them or by their callous attitude. The Supreme Court held that in appropriate cases the court has jurisdiction to award monetary compensation by way of exemplary cost or otherwise to the detenues for their unlawful detention and violation of their personal liberty guaranteed under Article 21 of the Constitution.
Thus, our Supreme Court also awards compensation to the detenues for violation of their personal liberty and releases the detenues immediately from illegal detention.
Q. 15. Write an essay on the freedom of opinion and expression. Discuss the restriction on the freedom of speech and expression.
Ans. Under Article 19 of the Universal Declaration of Human Rights, 1948 it has been provided that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Similarly, Article 19 of International Covenant on Civil and Political Rights, 1966 provides “Everyone has right to hold opinions without interference. Everyone shall have right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice.”
Indian Constitution also provides the freedom of speech and expression. Article 19(1) (a) of the Constitution provides “All citizens shall have the right to freedom of speech and expression.” In Ramesh Thapper v. State of Madras, AIR 1950 SC 124, Justice Patanjali Shastri rightly observed, “Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government is possible.”
Article 19 (1) (a) provides that all citizens shall have freedom of speech and expression. But this right is subject to limitation imposed under Article 19 (2) of the Constitution, which empowers the State to put reasonable restrictions on the grounds viz., security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence and integrity and sovereignty of India.
Meaning and scope.- Freedom of speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It, thus, includes expression of one’s ideas through any communicable medium or visible representation, such as gesture, signs and the like. This expression also connotes publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed without circulation the publication would be of little value.
In Indian Express News Papers v. Union of India, (1985) 1 SCC 641, it has been held that freedom of expression has four broad special purposes to serve: (i) it helps an individual to attain self-attainment; (ii) it assists in the discovery of truth; (iii) it strengthens the capacity of an individual in participating in decision making; (iv) it provides a mechanism by which it would be possible to establish reasonable balance between stability and social change. All members of the society should be able to form their own belief and communicate them freely to others.
In Sakal Newspapers Ltd. v. Union of India, AIR 1962 SC 305, the Supreme Court has held that right of freedom of speech and expression cannot be taken away with the object of placing restriction on the business activity of a citizen. The right to freedom of speech and expression includes the right of freedom of the press because news-papers are best medium for expression of ideas in a democratic society.
In K.A. Abbas v. Union of India, AIR 1971 SC 481, the constitutionality of Cinematograph Act, 1952 was challenged in the Supreme Court as this Act divided films into two categories i.e., “U” films and “A” films. “U” films required unrestricted exhibition while “A” films could be shown to adults only. The petitioner contended that there were other forms of speech and expression besides the films and none of them were subjected to any prior restraint in the form of pre-censorship and claimed equality of treatment with such other forms. The Court, however, held that pre-censorship of films was justified under Article 19 (2) on the ground that films have to be so treated separately from other forms of art and expression because motion picture is able to stir up emotions more deeply than any other product of art. Hence, classification of films between two categories, i.e., “A” for adults, and “U” for all, was held to be valid.
In Ajay Goswami v. Union of India, AIR 2007 SC 493, the Supreme Court has held that on the publication of obscene materials imposing of restriction is justified as it is necessary for protecting the innocence of adolescent children.
Grounds of Restriction. Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed:
(a) Security of the State,
(b) Friendly relations with foreign States,
(c) Public order,
(d) Decency or morality,
(e) Contempt of Court,
(f) Defamation,
(g) Incitement to an offence,
(h) Sovereignty and integrity of India.
(a) Security of the State. Under clause (2) of Article 19 reasonable restrictions can be imposed on the ground of security of State. In Romesh Thapper v. Union of India, the Supreme Court explained the words “security of the State” to mean only serious and aggravated forms of public disorder, i.e., rebellion, waging war against the State but it does not include ordinary breaches of public order and public safety.
(b) Friendly relations with foreign States. This ground was added by the Constitution (1st Amendment Act, 1951). The object behind it is to prohibit unrestrained malicious propaganda against a foreign friendly State which may jeopardise the maintenance of good relations between India and that State.
(c) Public order. This ground was also added by the Constitution (1st Amendment) Act, 1951 in order to meet the situation arising from the decision of Supreme Court in Romesh Thapper’s case. In this case, the Supreme Court had held that ordinary or local breaches of public order were not grounds for imposing restriction on the freedom of speech and expression guaranteed under the Constitution. “Public order” is an expression of wide connotation and signifies the break-down of governmental machinery due to internal disruption of law and order. It does not include ordinary breaches of peace.
(d) Decency or Morality. The words, decency or morality are the words of wide meaning. The word, “obscenity” of English law is identical with the word, “indecency” under the Indian Constitution. The test of obscenity as laid down in R. v. Hicklin, LR 3 QB 360, is whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort is likely to fall. Thus, a publication is obscene if it tends to prove immoral thoughts and arouses lustful desire in the minds of substantial number of public into whose hands the book is likely to fall.
In Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, the Supreme Court accepted the aforesaid test to judge the obscenity of a matter.
(e) Contempt of court.- Restriction can be imposed on the freedom of speech and expression if it exceeds the reasonable and fair limit of conversation and amounts to contempt of court.
Under Articles 129 and 215, the Supreme Court and the High Courts respectively have been provided jurisdiction to punish for contempt of court to a person guilty of their contempt. However, Contempt of Courts Act, 1971 deals with procedure for punishment for contempt of the court. Under this Act, contempt of court is punishable with simple imprisonment for a term of 6 months and or fine upto Rs. 2,000/- or both. A Judge or Magistrate acting judicially shall also be liable for contempt of his court in the same manner as an individual is liable under the Act.
(f) Defamation.- A statement which injures a man’s reputation amounts to defamation. Defamation consists in exposing a man to hatred, ridicule or contempt. In India, Section 499 of I.P.C. contains the criminal law relating to defamation. It does not distinguish between the defamatory statement addressed, to ear or eyes, i.e., slander or libel. This section is saved as being reasonable restrictions on the freedom of speech and expression. India follows the English law of contempt because Civil Law relating to defamation is not codified till date.
(g) Incitement to an offence. This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a licence to incite people to commit offence. The term, “offence” has been defined in the General Clauses Act to mean “any act or omission made punishable by law for the time being in force.” What constitutes offence is to be determined by the court with reference to the facts and circumstances of each case.
(h) Integrity and sovereignty of India. This ground was added by clause (2) of Section 19 of the Constitution (Sixteenth Amendment) Act, 1963. Under this clause, freedom of speech and expression can be restricted so as not to permit anyone to challenge the integrity or sovereignty of India or to preach secession of any part of India from the Union.
Q. 16. Discuss, how far Directive Principles of State Policy under Indian Constitution recognise the economic, social and cultural rights as guaranteed under International Instruments on Human Rights.
Ans. Directive Principles of State Policy contained in Part IV of the Constitution, set out the aims and objectives to be taken up by the State in the governance of the country. This novel feature of the Constitution has been borrowed from Irish Constitution. It may be noted that these provisions are available in the Universal Declaration of Human Rights, 1948, as well as under International Covenant on Economic Social and Cultural Rights, 1966. The following chart will give comparative description of Economic Social and Cultural Rights with those of Directive Principles of State Policy of Indian Constitution.
The abovementioned economic, social and cultural rights, were already available in our Constitution before the advent of International Covenant on Economic, Social and Cultural Right, 1966. There exist many directive principles in our Constitution which have not found place in the International Covenant on Economic, Social and Cultural Rights. These rights are as follows:
(1) Equal justice and free legal aid; (Article 39-A)
(2) Organisation of Village Panchayat; (Article 40)
(3) Uniform Civil Code for the citizens; (Article 44)
(4) Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections; (Article 46)
(5) Protection and Improvement of environment and safeguarding of forests and wild-life, (Article 48-A).
On the other hand there are certain rights under the International Covenant on Economic, Social and Cultural Rights, 1966, which have not found place in Directive Principles of our Constitution. These rights are as follows:
(1) Right of everyone to social insurance which is included in right to social security. (Article 9)
(2) Right of everyone to take part in cultural life, right to enjoy benefits of scientific progress and its applications, alongwith to benefit from the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author. (Article 15)
As India is a signatory country to the Universal Declaration of Human Rights, 1948 as well as International Covenant on Economic, Social and Cultural Rights, 1966, so India should incorporate these rights of the Covenant in the Constitution.
Q. 17. Examine the nature of Directive Principles of State Policy as provided in Indian Constitution and give a brief account of its contents.
Or
“Directive Principles of State Policy as contained in Part IV of Indian Constitution are the basic needs oriented Human Rights.”
Explain the importance of Part IV of the Constitution in the light of the above statement.
Ans. The Directive Principles of State Policy have been described in Part IV of the Constitution. It is the duty of the State to legislate according to the objectives of these principles. The ideal of a welfare State can only be achieved when the States endeavour to implement them with a high sense of moral duty.
Today, we are living in an era of a welfare State which has to promote the prosperity and well being of the people. Directive Principles lay down certain economic and social policies to be pursued by various governments in India. These principles lay down certain obligations on the State to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy.
Following directive principles have been provided in Part IV of the Constitution:
(1) Application of the Principles contained in this Part (Art. 37). The provisions of this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
(2) State to secure a social order for the promotions of welfare of the people (Art. 38).- (i) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice-social, economic and political, shall inform all the institutions of the national life.
(ii) The State shall in particular, strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
(3) Certain principles of policy to be followed by the State (Art. 39). The State shall, in particular direct its policy towards securing:
(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of the workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
(4) Equal justice and free legal aid. (Art. 39-A). The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall in particular provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
(5) Organisation of Gram Panchayat (Art. 40). The State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
(6) Right to work, to education and to public assistance in certain cases (Art. 41). The State shall, within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
(7) Provision for just and humane conditions of work and maternity relief (Art. 42). The State shall make provision for securing just and humane conditions of work and for maternity relief.
(8) Living wage etc., for workers (Art. 43). The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work, ensuring a decent standard of living and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
(9) Participation of workers in management of industries (Art.43-A). The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry.
(10) Uniform Civil Code for the citizens (Art. 44). The State shall endeavour to secure for the citizens a uniform civil code throught the territory of India.
(11) Provision for early childhood care and education to children below the age of six years (Art. 45). The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
(12) Provision of educational and economic interests of Scheduled Casted, Scheduled Tribes and other weaker sections (Art. 46). The State shall promote with special care the educational and economic interest of the weaker sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation.
(13) Duty of the State to raise the level of nutrition and the standard of living and improve public health (Art. 47). The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
(14) Organisation of Agriculture and Animal Husbandry (Art. 48). The State shall endeavour to organise agrculture and animal husbandry on modern and scientific lines and shall in particular, take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle.
(15) Protection and improvement of environment and safeguarding of forests and wildlife (Art. 48-A). The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
(16) Protection of monuments and places and objects of national importance (Art. 49). It shall be the obligation of the State to protect every monument or place or object of artistic or historical interest, declared by or under law made by the Parliament, to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be.
(17) Separation of executive from judiciary (Art. 50).- The State shall take steps to separate the judiciary from the executive in the public services of the State.
(18) Promotion of International Peace and Security (Art. 51).- The State shall endeavour to.-
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised people with one and another;
(d) encourage settlement of international disputes by arbitration.
Importance of Directive Principles in the Constitution.- Supporting the inclusion of Directive Principles of State Policy in the Constitution, Dr. B.R. Ambedkar had said, “Our Constitution lays down what is called Parliamentary democracy.. By Parliamentary democracy we mean ‘one man one vote.’ While we have established Parliamentary democracy, it is our desire that we should lay down a mechanism as ideal, the economic democracy. We do not want merely to lay down a mechanism to enable people to come and capture power. The Constitution wishes to lay down an ideal before those who would be forming the Government. Our ideal is economic democracy.”
As Directive Principles are inherent in our Constitution, it is the duty of the Government to implement them through legislation. No Government can dare to ignore the Directive Principles for a long time because the Directive Principles are the soul of the Constitution.
No doubt, the Directive Principles are human rights of fundamental importance to the citizens of the country.